MASSACHUSETTS: Sex in the Divorce

Sex in the Divorce

An article I recently read about a draft bill in Massachusetts that proposes a ban on sex or dating in the marital residence without prior judicial consent pending the finalization of the divorce action, inspired this post.

Can a judge legally forbid an adult, who happens to be in the midst of a divorce action, from having sex, albeit in the former marital residence? This sounds more than just a little bit crazy and this is with all due respect and an acknowledgement of the need for parents to have enough self respect and respect for their children, and too for the failed marriage, to measure and consider their conduct and behavior – including their sexual behavior. For heavens sakes this is a matter of class and self-control and respect to a great extent and we readily admit that were we in a similar situation, we more than likely would not engage in this activity while our children were in the home and while they were watching. This is just a matter of personal taste and style.

That said, what would be the “rational basis” for a law that forbade, in a blanket fashion, sex in the former marital residence without judicial permission? Is the judge now to act as a sex God? The Freedom to marry, divorce and have sex are fundamental rights are they not? I believe under both the state and federal constitutions of the United States these are fundamental rights. And I believe they are also fundamental rights under various International instruments such as the Universal Declaration of Human Rights and the UN Charter although don’t quote me on that. It is just that it boggles the mind that a legislating body in the United States, the most progressive country in the entire world, is being asked to consider such a law.

This truly is a ludicrous and constitutionally outrageous proposition. Obviously it cannot and will not be passed into law and could never pass a judicial challenge. But first of all, the whole thing is icky. How would this work? A guy would go to the court and submit a motion and ask if he can have sex with his new girlfriend in the former marital residence on Fridays at 9? Does this apply to same sex spouses? Or is this more directed at heterosexuals and specifically women since they are the ones who usually get the marital residence? And for heaven’s sakes how would the judge respond to this?

Furthermore, there is the not so small issue of fundamentality of sexual freedom in the United States, to wit, the US Supreme Court decision in Bowers v Hardwick and their progeny. This proposed Massachusetts law discriminates against spouses who live in the marital home pendent lite and those tend to be the wives. It permits the spouse who lives outside the home to do as they please but tries to control the behavior of the spouse who lives in the home – and as I said this is usually the wife. So in effect it is government action that discriminates against a suspect or protected class – women. So the state would have to show a compelling interest in order to justify such a law, I’m thinking. And don’t tell me it is in the “best interest of the child.” I don’t think the guy who proposed the law was thinking about the best interest of the kids. This is his ego that has run off the rails. This is his jealous rage.

Moreover, there are lesser restrictive means of handling this situation such as suggesting that the ex spouse waits until the children are safely asleep before they bring dates home. But even that seems to over-reach and go too far. This just sounds like a jealous ex spouse (more than likely the husband) who wants to control his wife’s dating and sexual life. It is pretty brazen that he is trying to use the legislative process and powerful political friends to do it.